Grover & Baker Sewing Machine Co. v. Kimball

Majority

p. 417

The Grover & Baker Sewing Machine Company vs. Kimball, impleaded &c.

[Broome Special Term,

January 28, 1873

Hardin, Justice.]

Headnote

Where the defendant was a resident of the county of Broome, and the plaintiff was a corporation created by the laws of the State of Massachusetts, having a principal place of business in the city of New York; Held that section 125 of the Code admitted of no construction which would authorize the plaintiff to retain the place of trial in Madison county, where neither of the parties resided.

MOTION" to change the place of trial from Madison county to Broome.

After service of the complaint, a demand for the change was made. The defendant is a resident of the county of Broome. The plaintiff is a corporation created by the laws of the State of Massachusetts, and has a principal place of business in the city of New York.

C. E. Marshall, for the motion.

J. N. Messinger, opposed.

By the papers used on the hearing of this motion, it appears that neither of the parties resides in the county of Madison, the county named in the complaint as the place of trial.

It is provided by section 125 of the Code that “the action shall be tried in the county in which the parties, or any of them, reside at the commencement of the action.” And this provision admits of no construction which would authorize the plaintiff to retain the place of trial in Madison county.

The point is settled, by authority, against the plaintiff. (International Life Ass. Co. v. Sweettand, 14 Abb. 240 . Pond v. The Hudson River R. R. Co., 17 How. 543 . Cooke v. State N. Bank of Boston, 50 Barb. 340 . Hubbard v. Nat. Protec. Ins. Co., 11 How. 149 . Conroe v. The Same, 10 id. 403.)

The motion is granted, with $10 costs.